Stuart (Migration)

Stuart (Migration) [2024] AATA 3694 (9 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Kurwan Patrick Stuart
VISA APPLICANTS:  Ms Charlene May
Miss Madison Jane Olga Stuart
Miss Kiara Carin May
REPRESENTATIVE:  Mrs Ameline Gailan Aulakh (MARN: 2117712)
CASE NUMBER:  2203343
DIBP REFERENCE(S):  BCC2018/3375648
MEMBER:T. Quinn
DATE:9 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that:
· the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa: clauses 309.211(2)(a) and 309.221(1)(a) of Schedule 2 to the Regulations;
and
· the second and third applicants meet the following criteria for Subclass 309 (Partner (Provisional)) visas: Clauses 309.311, 309.312 and 309.321(a) of Schedule 2 to the Regulations.

Statement made on 09 August 2024 at 10:46am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – applicant and the sponsor have pooled their financial resources and share day to day household expenses –raising two children together as a tight family unit – applicants have been in a relationship for over 10 years – satisfied that the applicant is in a de facto relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.09, 1.15, Schedule 2, cls 309.211, 309.221, 309.311, 309.321
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 6 September 2018, the first named visa applicant (‘the applicant’ or ‘Ms May’) applied for a Provisional Partner visa[1] (‘the visa’) based on her relationship with the review applicant, Mr Kurwan Stuart (‘the sponsor’ or ‘Mr Stuart’).[2] The second applicant is the daughter of Ms May and Mr Stuart and the third applicant is the daughter of the first named visa applicant from a previous relationship.
[1] Specifically, a Partner (Provisional) (Class UF) visa.
[2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of a Subclass 309 visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
On 17 February 2022, a delegate of the Minister for Immigration (‘the delegate’) refused the applicant’s visa application, not being satisfied that at the time of application the applicant and the sponsor were in a genuine de facto relationship with the sponsor as defined by section 5CB of the Act (‘the delegate’s decision’).[3] It followed that the applications of the second and third applicants also failed, as they are dependent upon the success of the primary visa applicant’s application.
[3] See clause 309.211(2) of the Regulations.
On 9 March 2022, the sponsor applied for a review of the delegate’s decision with this Tribunal.[4]
[4] Pursuant to sections 338(5) and 347(2)(b) of the Act.
The sponsor and first named applicant appeared in person before the Tribunal on 7 August 2024 to give evidence and present arguments. Mr Ashely Dumesny, the applicant and sponsor’s boss also attended the hearing and was ready and willing to give evidence in support of the relationship. The parties were represented in relation to the review, and their representative also attended the hearing remotely via video.
I have proceeded to a decision to remit this case for reconsideration, having regard to all the information before me. In reaching my decision, I have considered:
a.all evidence given at hearing;
b.all material filed by or on behalf of the applicant and sponsor; and
c.other relevant documents on the Tribunal and Department files.
Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.[5]
[5]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].
STATUTORY AND LEGAL FRAMEWORK
The issue in this case is whether the applicant and the sponsor are in a de facto relationship as defined by section 5CB of the Act.
Clause 309.211(2) of the Regulations requires that at the time the visa application was made the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims that she is the fiancé (de facto partner) of the sponsor, who is a South African born Australian Permanent Resident. Based on the information before me I am satisfied that the sponsor is an Australian Permanent Resident.[6]
[6]See Department and Tribunal files and evidence at hearing.
‘De facto’ is defined in section 5CB of the Act and provides that a person is the de facto partner of another where the two persons are not in a married relationship but have a mutual commitment to a shared life to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis.[7]
[7] Section 5F(2)(aa)-(d).
In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and the sponsor’s household and their commitment to each other as set out in clause 1.09A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.09A(3) of the Regulations are effectively questions which must be answered.[8]
[8] He v MIBP [2017] FCAFC 206.
The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.
Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[9] In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants, and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[10]
[9] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.
[10]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].
If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[11]
[11]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].
It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[12]
CONSIDERATION OF CLAIMS AND EVIDENCE
[12]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].
Timeline
The sponsor first arrived in Australia in 1999 as a dependent on his father’s visa. He returned to South Africa from 2002-2016.
The sponsor was in a relationship in South Africa which has not been disclosed in the applicant’s application form or the sponsorship form which the Tribunal requested to be filed shortly prior to the hearing. The relationship ended in or around 2009. There was one child of this relationship born in 2006 and he lives in South Africa.
The applicant has been in one previous relationship from June 2007-August 2010. There is one child of this relationship who is the third applicant in this case.
The applicant and the sponsor (together referred to as ‘the applicants’ hereinafter) first met over ten years ago at the gym the applicant worked at in South Africa. Their relationship commenced shortly thereafter.
The applicants had their first child, the second applicant, in 2015.
The sponsor moved back to Australia in 2016 with a view to creating a better life for his family.
In 2017, the sponsor proposed to the applicant on a visit to South Africa.
The sponsor has travelled back to South Africa three times between 2016-2018 to visit and live with his fiancé and children.
The first, second and third applicants visited the sponsor from 18 May – 2 September 2018 and 8 September 2018-28 February 2019 on visitor visas.
From 2-8 September the applicants travelled with the second and third applicants to Indonesia for a holiday and to make the application which is the subject of this review, on the advice of their then migration agent.
The first, second and third applicants left Australia only briefly from 28 February-3 March 2019. The applicants and the two children have been living together as a family since March 2019 in Australia. The first, second and third applicants’ residence was unlawful for a significant period without their knowledge. In or around 2022, the applicants realised the unlawful residence and immediately rectified the problem.
The first, second and third applicants have no travel rights and have been unable to return to South Africa since 2019.
The sponsor returned to South Africa in 2022.
The applicants recently began renting a new house together in join names. They continue to live there together with the second and third applicants.
Financial aspects of the Relationship
Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.
The applicant and sponsor have filed financial evidence showing that they have separate accounts which they regularly transfer money between to meet their daily needs.
The sponsor has filed his tax return listing the applicant as his spouse, his will gifting his assets to the first, second and third applicants and his son Wyatt who lives in South Africa. However, the will filed has not been executed, the sponsor’s oral evidence was that he did sign this document.
The evidence at hearing was consistent that the couple are in debt because of the expenses incurred in relation to this visa application and other expenses. The applicant had little knowledge of the amount or details of the debt but was aware of its existence. The evidence at hearing was consistent that the couple’s short-term plans are to get out of debt, return to South Africa so the first applicant can see her ailing father and get married. Their evidence was consistent that in the long term they would like to buy a house together.
The evidence at hearing was consistent that the sponsor would like to move to Western Australia to work in the mines to earn more money and have better hours to spend time with his children. The evidence about how this would impact the children was somewhat inconsistent but reflected what would generally be observed in parents with different opinions.
The applicants have filed residential tenancy agreements, tax returns and bills generally indicating they share household expenses. Their evidence about why the sponsor was the only tenant on their previous tenancy was consistent (in that this was the house he was living in prior to the first, second and third applicants’ arrival onshore).
The applicants gave consistent evidence about the hours and days of the week that the applicant and sponsor work, their respective jobs and their incomes. This was particularly persuasive given the sponsor’s long hours, with such an early start and his day-to-day routine.
The evidence at hearing was consistent that the sponsor owns a car and boat and how long he has had the boat for and what he uses it for. The evidence at hearing was consistent that the applicant is only on her learner’s licence and has an electric scooter to get around.
I accept that the applicant and the sponsor have pooled their financial resources and share day to day household expenses. They do not own any significant assets together; do not have joint liabilities (as it appears the debt referred to above is only in the sponsor’s name); do not owe any legal obligations to each other.
I have placed some weight in favour of the applicants in relation to the financial aspects of the relationship.
Nature of the Household
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.
The applicants have filed evidence and gave evidence at hearing that they have been living together as a family during time in South Africa prior to 2016, during the sponsor’s visits to South Africa between 2016-2018 and since the first, second and third applicants’ arrival in 2018.
The evidence at hearing was consistent about the second applicant’s school and dancing circumstances, the third applicant’s school, band and softball circumstances and the ways in which the children get to and from school, noting the second applicant is in primary school and third applicant is in high school at a different location.
The applicants were both well versed in the routines of their children and how the household runs. The sponsor’s father and two brothers, together with one of his brother’s four children, live in Australia and have an active role in the lives of the applicants’ family. The evidence was consistent about how regularly the families see each other, including that they had seen each other the night before hearing.
The applicants have filed some photos of various travel and activities they have undertaken together, with and without the second and third applicants, including travel together to Indonesia for holidays. On request of the Tribunal they have filed photos from the birth of the second applicant, most of which were taken by the sponsor and so he is not in them. He was able to produce a photo on his phone at hearing of him together with the applicant and second applicant in the hospital bed which had not been filed prior to hearing.
The applicants gave relatively consistent evidence about the names and ages of the children of the sponsor’s brother and the applicant’s father’s ill health.
The evidence at hearing was consistent that the third applicant’s father has not been involved in her life at all since birth. It was clear that the sponsor is the only father figure for the third applicant.
The evidence at hearing was consistent that the couple have had a Calico cat named Mango for the last five years who is particularly affectionate when the sponsor has had to have surgeries on his heart.
In the circumstances, I found the evidence in relation to the household aspects of the relationship very persuasive, particularly the evidence of this couple raising two children together as a tight family unit. I have placed significant weight in the applicants’ favour in relation to this factor.
Social Aspects of the Relationship
Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
I refer to and repeat paragraphs 41-44 above. I do not consider the number of photos filed are commensurate with a relationship which has spanned over a decade and am surprised the applicants have not filed more photos.
The applicant was able to produce her social media profile at hearing which had one photo from 2018 with the sponsor and their two children. She also showed me the sponsor’s social media which had a profile picture of him with the first, second and third applicants and listed himself as in a relationship since 2013. However, the evidence was consistent at hearing that the sponsor does not engage much with social media.
The applicants have filed a number of statutory declarations from friends and family, although these are now very dated. The sponsor and applicant work in the same warehouse and their boss was ready and willing to give evidence in support of their relationship at hearing. I was satisfied about the nature of their relationship after taking evidence from the applicant and sponsor and so did not take evidence from Mr Dumesny. I note Mr Dumesny is the executor for the sponsor’s will and has filed statutory declarations in support of this relationship and accept that his evidence would have supported the findings I have made in this case.
The applicant was wearing her engagement ring at hearing and the evidence at hearing was consistent about the sponsor’s proposal in 2017 and their financial reasons for not getting married yet.
The sponsor was well versed in the applicant’s father’s ill health in that he is bed ridden with dementia. The sponsor travelled to South Africa last year and visited the applicant’s father as she cannot travel and is concerned about seeing her father before he passes.
I place significant weight in the applicants’ favour in relation to the social aspects of the relationship, particularly the closeness described between the applicants and third children and the sponsor’s family and the sponsor’s knowledge about his father in law’s ill health.
Nature of the applicant and the sponsor’s commitment to each other
The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.
I refer to and repeat the paragraphs above.
The applicants have been in a relationship for over 10 years, engaged for seven years and living together in Australia since 2018.
I invited the applicants to provide any copies of text message correspondence between them prior to hearing and some text message correspondence was filed which appeared to be reflective of a genuine relationship.
The evidence at hearing was consistent that the applicants see the relationship as a long term one.
I place significant weight in the applicants’ favour in relation to their commitment to each other.
Other Matters
It is clear that the applicants’ previous representative was operating negligently at best, and their conduct has been fatal to what is clearly a legitimate partner visa application. There are a number of unanswered requests for information which have not been dealt with by the applicants. They had limited awareness of this, and these documents have been provided to the applicants to rectify since the hearing.

I am concerned about the matters raised in paragraphs 15 and 24 above. Whilst the unlawful residence has now been rectified, the non-disclosure of the sponsor’s previous relationship could be considered a breach of the Public Interest Criterion 4020 and must be remedied.
Conclusions
I have carefully considered all of the evidence before me. I find that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis. I am satisfied that the applicant is in a de facto relationship with the sponsor and the applicant therefore satisfies clauses 309.211(2)(a) and 309.221(1)(a) of Schedule 2 to the Regulations.
As the decision in relation to the primary visa applicant is remitted, the decision in relation to the second and third visa applicants must also be remitted.
Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that: the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa: clauses 309.211(2)(a) and 309.221(1)(a) of Schedule 2 to the Regulations; and the second and third applicants meet the following criteria for Subclass 309 (Partner (Provisional)) visas: Clauses 309.311, 309.312 and 309.321(a) of Schedule 2 to the Regulations
T. Quinn
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09ADe facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day‑to‑day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long‑term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

[2024] AATA 3694

9 August 2024

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Immigration

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